This writ petition has been filed by the petitioner for a direction in the nature of certiorari quashing the order dated 18/19.02.2008 passed by the Regional Joint Director of Education and as well as the Resolution No. 8 of the Committee of Management dated 18.07.2004 and the Resolution No. 7 dated 05.08.2007 as also the order dated 6.08.2007 and the seniority List of the year 2007-08 punished on 6.08.2007.
There is an Inter College known as Akbar Balika Inter College, Akbarpur (the Institution), Kanpur Dehat. It is a recognized Intermediate College and receiving grant-in-aid from the year 1981. It was granted recognition as a High School in the year 1986 and the High School was brought in grant-in-aid in the year 1991. Subsequently, it has also been granted recognition as an Intermediate College.
The case of the petitioner is that she passed her Intermediate examination in the year 1972 and her B. Ed. Examination in 1976 and M.A. in Sanskrit in 1986.
The Institution started functioning as a Junior High School from the year 1973. The petitioner was appointed as an Assistant Teacher in the Junior High School on 09.08.1973 in the pay-scale of 210-330. The respondent No. 5 was also appointed in the Institution on 17.09.1974 in the pay-scale of 210-330.
The dispute in the present case essentially is one of inter se seniority between the petitioner and the respondent No. 5.
The contention of the petitioner is that at the time of her appointment in 1973, there were no rules governing the appointment of Teachers in Junior High School but there was a G.O. dated 10.03.1971 which prescribed a minimum qualification of Intermediate pass for a candidate to be appointed as Assistant Teacher. The rules prescribing the possession of a Teacher's Training Certificate came into effect with the Rules known as Uttar Pradesh Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978, (the Rules 1978). Rule 4 sub Rule (1) reads as follows:
Rule 4. Minimum Qualifications.--- (1) The minimum qualifications for the post of assistant teacher of recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and teacher's, training course recognised by the State Government or the Board such as (Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training).
By the impugned order dated 19.02.2008, the respondent No. 5 has been held to be senior to the petitioner on the ground that the petitioner at the time of her appointment on 9.08.1973 was only Intermediate and in the circumstances she could not have been appointed as an Assistant Teacher whereas the respondent No. 5 was not only Intermediate but also possessed B.T.C. Even on the basis of the age, date of birth of respondent being 1.07.1954 and that of the petitioner being 10.07.1954, the respondent No. 5 would be senior to the petitioner.
I have heard Sri Siddharth Khare, learned counsel for the petitioner, Sri P.N. Saxena, Senior Advocate assisted by Sri Anand Dwivedi and the Standing Counsel appearing for the rest of the respondents. The order is being dictated in open Court.
Seniority of Teachers under the institutions to which the U.P. Intermediate Education Act, 1921, is applicable, is governed by the provisions of Chapter II, Regulation 3(b), and where two persons are promoted on the same date in a particular grade, seniority would be determined in terms of Regulation 3(bb) of Chapter II. Regulation 3(b) and 3(bb) are quoted below:-
"3 (b). Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in the grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age:
(bb) Where two or more teachers working in grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the basis of the length of their service to be reckoned from the date of their substantive appointment in the grade from which they are promoted. Provided that if such length of service is equal, seniority shall be determined on the basis of age."
The submission of Sri Siddharth Khare is that as per the G.O. of 10.03.1971, the minimum educational qualification required was Intermediate which qualification the petitioner possessed. At that time, there was no requirement that the petitioner should also possess the qualification of Teachers Training Certificate.
On the other hand, Sri P.N. Saxena, the learned Senior Counsel submitted that the respondent No. 5 was not only Intermediate but also B.T.C. He also placed reliance on the G.O. dated 10.03.1971. He has drawn the attention of the Court to the provisions of Para 5 to the G.O. of 10.03.1971, which provides that an Assistant Teacher untrained must within 5 years of his appointment acquire the eligibility qualification of Teachers Training Certificate.
Sri Saxena also drew the Court's attention to Item No. 2 of the G.O. of 10.03.1971, which provides that the scale of pay of an untrained Assistant Teacher at the relevant point of time was (67-167), later revised to (67-168) whereas the scale of pay of Assistant Teacher who in addition to being Intermediate and was B.T.C. Pass, was (80-180) revised to (84-180).
The submission of Sri Siddharth Khare is that the requirement of acquiring a Teachers Training Certificate within five years from the date of appointment was only for the purpose of grant of Trained Teachers Grade and it was never relevant, so far as the appointment on the substantive Post was concerned. His submission is that if the petitioner possessed the minimum qualification of Intermediate that would be treated to be the substantive appointment and seniority would count from the date of such appointment.
Per contra, the submission of Sri P.N. Saxena is that the G.O. of 10.03.1971 leaves no iota of doubt that in addition to the qualification of Intermediate, the untrained Teachers were also required to acquire the qualification of Teachers Training Certificate within five years from the date of appointment. His further submission is that the additional qualification of a B.T.C. Certificate was not for purposes of grant of a Trained Teachers Grade only but was an essential qualification, by way of liberty granted to a untrained teacher to acquire within five years and therefore, the date of substantive appointment would be counted only from the date when the Teacher acquires the Teachers Training Certificate. His submission therefore is that at the time of her appointment on 17.09.1974, the respondent No. 5 was not only an Intermediate pass but also possessed the Certificate of B.T.C. and therefore her seniority would count from 17.09.1974 being the date of her substantive appointment. On the other hand, he submitted that the petitioner at the time of her appointment on 9.08.1973 was only Intermediate pass and she acquired a B.A. Degree in 1974 and M.A. In Sanskrit in 1986. She acquired B.Ed. Degree only in the year 1976 and therefore her substantive appointment would count from 1976 and in the result the Respondent no. 5 would be senior to the petitioner.
Shri Siddharth Khare as placed reliance on certain decisions which may be taken up for consideration one by one.
The first decision that he has relied upon is reported in 2000(1)AWC 193 Pati Ram Yadav Vs. State of U.P. and others. He referred to para 6 of the said judgment wherein the learned Single Judge of this Court referring to the G.O. of 10.03.1971 held that the bare minimum eligibility qualification for a teacher in a Basic School was Intermediate and the requirement of a Teachers Training Certificate came into effect as an essential qualification only under the Rules of 1978. The Rules 1978 did not have retrospective effect and therefore, since the petitioner in that writ petition was an Intermediate pass at the time of his appointment, his appointment would have to be held to be valid. The learned Single Judge further held that a teacher not having the qualification of Teachers Training Certificate would at the most only be entitled to be paid the salary as an untrained Teacher but that itself would not invalidate the appointment of the petitioner. However, the question of seniority neither arose in that case for consideration nor as any opinion being expressed by the learned Single Judge with regard to the date from which the seniority would be counted. The learned Single Judge deciding the case of Pati Ram Yadav placed reliance upon a decision reported in 1990(1) U.P.L.B.E.C. 351, Rikh Pal Singh Vs. Secretary, U.P. Basic Education Board . In that case also the only question involved was as to whether the Rules 1978 are/of prospective or retrospective operation and whether not having a Teachers Training Certificate would invalidate the appointment. The learned Single Judge in the case of Rikh Pal Singh held that the Rules 1978 are prospective in nature and do not affect the appointments which have already been made before the commencement of the Rules. The services of Teachers who were appointed before the enforcement of 1978 Rules cannot be terminated on the ground that they do not possess the requisite minimum qualifications as have been provided for the first time by the 1978 Rules.
Shri P.N. Saxena placed reliance upon another single judge decision of this Court reported in 2003(3) AWC 2227, Panchami Singh Vs. Joint Director of Education, Gorakhpur. That was a case in which the question of seniority was directly involved. The case of the petitioner in that case was that he was appointed as an Assistant Teacher on 1.10.1975 but he was not trained. He acquired the B. Ed. Qualification on 1.08.1977, whereas the respondent No. 3 therein was appointed in 1972 but he acquired B.T.C. Certificate in the year 1974-75. The learned Single Judge held that the appointment of the petitioner therein as a C.T. Grade Teacher would be treated to have been made after he acquired the B. Ed. Qualification on 1.08.1977 whereas the respondent No. 3's appointment would be taken as valid from the date, he acquired the B.T.C. Certificate in the year 1975 (Para 5 of the said judgment) and thus the respondent No. 3 would be senior to the petitioner. The learned Single Judge while coming to his conclusions has also referred to a decision of the Supreme Court reported in 1986 U.P.L.B.E.C 473, Sheetla Prasad Shukla versus State of U.P. and others and held that therein a distinction was made between teachers who were regularly and validly appointed and those whose appointment became regular subsequently.
Sri Siddharth Khare has drawn my attention to the judgment of the Supreme Court in the case of Sheetla Prasad Shukla (supra) and his submission is that in that case, seniority itself was never in question and the question in that case was that the appointment would be held to be valid from the date whenever exemption from obtaining essential qualification is granted by the Board of High School and Intermediate Education U.P. His submission therefore is that the reliance by the learned Single while deciding the case of Panchami Singh, on the decision of the Supreme Court, was misplaced.
Having gone through the various decisions, all of Single Judges, I find that there is a serious contradiction so far as, substantive appointment for purposes of inter se, seniority is concerned, and the question, as to whether under the G.O. of 10.03.1971, the acquisition of a Teachers Training Certificate was valid only for the purposes of grant of a higher grade or was an essential qualification for substantive appointment on the post of Assistant Teacher (Basic), remains to be answered.
The judgments in the case of Pati Ram Yadav and Rikh Pal Singh, of learned Single Judges, are earlier in point of time whereas the judgment in the case of Panchami Singh is of a later date. However, in the case of Panchami Singh, reliance has been placed upon a judgment of the Supreme Court but in my opinion, since the question of seniority never arose before the Supreme Court, in the case of Shitla Prasad Shukla and the question therein related to grant of exemption from obtaining essential qualification by the Board of High School and Intermediate Examination, the said judgment was not applicable to determine the starting point of a substantive appointment in terms of G.O. dated 10.03.1971.
I am, therefore, of the view that this controversy needs to be referred to Larger Bench for its proper adjudication on the following questions:
1. Whether possession of a qualification of Intermediate by an Assistant Teacher prior to enforcement of 1978 Rules would be valid qualification for the purposes of substantive appointment.
2. Whether acquiring a Teachers Training Certificate within 5 years of appointment as provided in the G.O. of 10.03.1971 is an essential qualification for appointment on substantive grounds as an Assistant Teacher or is it valid only for the purposes of grant of a Higher Grade i.e. Trained Teachers Grade.
3. Whether acquisition of a Teachers Training Certificate is a valid qualification for substantive appointment on the post of Assistant Teacher (Basic) for determining inter se seniority.
4. Whether compulsory acquisition of a Teachers Training Certificate on completion of five years of appointment is 'promotion' within the meaning of Regulation 3(bb) of Chapter II of the U.P. Intermediate Education Act, 1921.
Let the records of the case be placed before the Hon'ble Chief Justice for passing appropriate orders.
Order dated: 09.05.2012 Arun K. Singh